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[2025] NSWSC 978
General information, not legal advice.
Supreme Court of NSW
2025-08-28
Harrison AsJ
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Medium Neutral Citation: DLAW Pty Ltd v CROFT DEVELOPMENTS Pty Ltd (2025/243984); DLAW Pty Ltd v CROFT DEVELOPMENTS Pty Ltd (2025/243922) [2025] NSWSC 978
Hearing dates: 18 August 2025
Date of orders: 28 August 2025
Decision date: 28 August 2025
Jurisdiction: Common Law
Before: Harrison AsJ
Decision: (1) I dismiss pars 2 and 3 of the plaintiff’s Motion filed 4 August 2025 in 2025/243922, seeking discovery from the manager, costs assessment.
(2) I dismiss par 4 of the plaintiff’s Motion filed 4 August 2025 in 2025/243984, seeking a stay of costs assessment proceedings.
(3) The plaintiff is to pay the defendant’s costs in relation to the applications made in both Notices of Motion on an ordinary basis.
Catchwords: DISCOVERY – Manager, Costs Assessment – Dismissed
STAY OF PROCEEDINGS – Costs Assessor – Dismissed
COSTS – Plaintiff to pay defendant’s costs on an ordinary basis
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 67, 98
Legal Profession Uniform Law, r 34
Legal Profession Uniform Law Application Act 2014 (NSW)
Legal Profession Uniform Law Application Regulation 2015 (NSW), r 34
Uniform Civil Procedure Rules 2005 (NSW), rr 21.2, 42.1, 50.4, 59.6, 59.7(4)
Cases Cited: R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13
Nano Logistics Pty Ltd v Harper James Law Group Pty Ltd [2024] NSWSC 251
Griffith v Australian Broadcasting Corporation & Ors [2013] NSWSC 750
Johnston v Boyd [2023] NSWSC 194
Cizek & Mihov [2024] FedCFamC1A 151
GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857
Gilles v Palmieri [2018] NSWSC 350
Sydney City Council v Geftlick [2006] NSWCA 280
Leichhardt Municipal Council v Green [2004] NSWCA 341
Texts Cited: G Appleby, “The Government as Litigant” (2014) 37(1) UNSW Law Journal, 94
Category: Procedural rulings
Parties: DLAW Pty Ltd (Plaintiff)
Croft Developments Pty Ltd (First Defendant)
Manager, Cost Assessments (Submitting Appearance)
Bruce Bentley (Submitting Appearance)
Representation: Counsel:
J Doyle (Plaintiff)
P Doyle Gray (Defendant)
Solicitors:
Houston & Associates (Plaintiff)
Minh Nguyen (First Defendant)
File Number(s): 2025/243984; 2025/243922
Publication restriction: Nil
There are two proceedings between the same parties. The first one is DLAW Pty Ltd trading as Doyles Construction Lawyers v CROFT DEVELOPMENTS Pty (2025/243922). It seeks judicial review against the manager, costs assessment. The second proceeding is DLAW Pty Ltd trading as Doyles Construction Lawyers v CROFT DEVELOPMENTS Pty Ltd (2025/243984). It seeks a judicial review of the costs assessor’s ruling. As they raise the same issues, this judgment covers both proceedings.
In both proceedings, the plaintiff is DLAW Pty Ltd (the law practice). It is represented by Houston Lawyers. The principal lawyer of both entities, DLAW Pty Ltd and Houston Lawyers, is James Patrick Doyle, a legal practitioner. The first defendant is Croft Developments Pty Ltd (Croft Developments). It is represented by Philippe Doyle Gray of counsel. Croft Developments Pty Ltd was acting as trustee. The proceedings correctly named Croft Developments Pty Ltd ABN 37064274684 AFT Croft Developments Unit Trust ABN 51326340371. For convenience and without intending any disrespect, I will refer to the first defendant as Croft Developments. Croft Developments is a former client of the law practice.
The law practice relied upon two affidavits one dated 4 August 2025 by Natalia Petukhova and the other dated 15 August 2025 by Tara O’Connell. Croft Developments relied upon two affidavits: one by Amal Witnish dated 15 August 2025 and another one by Minh Nguyen dated 16 August 2025. The latter affidavit was filed on 16 August 2025 and handed over in Court on the morning of the hearing.
The second defendant in the first proceeding (2025/243922) is the manager of the costs assessment (the manager, costs assessment). The second defendant for the second proceeding (2025/243984) is Bruce Bentley (the costs assessor). They both filed submitting appearances save as to costs.
At the conclusion of the hearing, I made a decision that the law practice failed on both issues, namely discovery and stay of proceedings. I informed the parties that I would provide my reasons later. The reasons are as follows.
There are two interlocutory issues to be heard:
whether the manager, costs assessment should, following leave being granted, be ordered to give discovery for the narrow categories; and
whether the cost assessors should be stayed pending further or final orders of the Court.
In the proceedings bearing case number 2025/243922, the law practice moved on pars 2 and 3 of its Motion filed 4 August 2025, seeking discovery from the manager, costs assessment. In these proceedings, Croft Developments made no submissions.
The law practice moved on par 4 of its Motion filed 4 August 2025 in 2025/243984, seeking a stay of costs assessment proceedings between the law practice and Croft Developments. Croft Developments submitted a stay should be refused.
At the outset of the hearing, the law practice sought leave to file an amended summons in each proceeding. Both summonses do no more than state the remedies sought. Some of those remedies appear to take issue with one or more decisions taken by the manager, costs assessment, or the costs assessor**.**
Croft Developments submitted that the proposed amended summonses:
fail to identify the decision;
fail to identify what decision the law practice seeks in place of that decision below; and
fail to state the grounds relied on in support of the appeal.
After examining the proposed amended summonses, I agree with Croft Developments’ submissions that the amended summonses failed to identify the decision, identify what the decision the law practice seeks in place of each decision below and failed to state the grounds relied upon in support of each appeal. In other words, to the extent that proposed amended summons are appeal against a decision by either the manager, costs assessment or the costs assessor, there has not been compliance with r 50.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). At the hearing, I refused to grant leave to file these proposed amended summonses.
The law practice invoiced Croft Developments about $356,000. Croft Developments had paid that in full.
On 8 November 2024, Croft Developments filed an application for costs assessment. Croft Developments asserts that it was overcharged by the law practice, and the fair and reasonable legal costs should be about $100,000. One of Croft Developments’ principal objections was that there was unnecessary duplication of work leading to confusion and increased charges for no good reason.
The manager, costs assessment assigned the application for costs assessment to the costs assessor.
On 23 April 2025, 6 months after the application for costs was filed, the law practice issued a further invoice, for about $139,000. Croft Developments sought to have the further invoice be considered by the costs assessor.
On 15 May 2025, Croft Developments filed an amended application for costs assessment. The only material difference was to include the additional further invoice in the sum of $139,000.
On 26 June 2025, the law practice commenced two sets of proceedings concerning its grievances, one with the manager, costs assessment and the other one with the costs assessor in relation to the execution of their respective statutory duties.
On 11 August 2025, the law practice issued a further invoice, for about $1,700. The law practice sent the invoice directly to the costs assessor but not to the former client as is customary. Croft Developments has not yet decided what to do about this invoice.
21.2 Order for discovery
(1) The court may order that party B must give discovery to party A of--
(a) documents within a class or classes specified in the order, or
(b) one or more samples (selected in such manner as the court may specify) of documents within such a class.
(2) A class of documents must not be specified in more general terms than the court considers to be justified in the circumstances.
(3) Subject to subrule (2), a class of documents may be specified--
(a) by relevance to one or more facts in issue, or
(b) by description of the nature of the documents and the period within which they were brought into existence, or
(c) in such other manner as the court considers appropriate in the circumstances.
(4) An order for discovery may not be made in respect of a document unless the document is relevant to a fact in issue. (my emphasis added)
The orders sought in proceedings numbered 2025/243984 in relation to the manager, costs assessment, are as follows:
Pursuant to UCPR r 59.7(4), leave be granted to the law practice to seek discovery.
Upon leave being granted, pursuant to UCPR r 21.2(1)(a), the manager is to give discovery of the categories of documents listed below:
(a) all documents relevant to communications between the manager, costs assessment and the costs assessor relating to the application for two assessments of costs dated 14 November 2024 and the amended application for assessment of costs dated 15 May 2025 (amended application); (b) the proposed amendments to the assessment process referred to by the costs assessor as advised by the manager, costs assessment in his letter of 20 June 2025; and (c) all documents relevant to the lodgement of the amended application including any communication with Croft Developments or any fee paid at the time the amended application was lodged.
The law practice seeks declarations as to the conduct of the costs assessment before the costs assessor.
The law practice submitted that to seek the declaration as to the conduct of the costs assessor, it will need to prove matters within the knowledge of the manager, costs assessment and presumably evidenced by documents in his records. They have sought those records on a number of occasions: 25 June 2025; 7 July 2025; 14 July 2025; 17 July 2025 and 23 July 2025.
Despite request for the documents, it has not been provided on the basis that without a Court order their representatives the Crown Solicitors take the view that the documents do not need to be provided relying on an incorrect interpretation of R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 where it was held:
“54. There is one final matter. Mr. Hughes was instructed by the Tribunal to take the unusual course of contesting the prosecutors' case for relief and this he did by presenting a substantive argument. In cases of this kind the usual course is for a tribunal to submit to such order as the court may make. The course which was adopted by the Tribunal in this Court is not one which we would wish to encourage. If a tribunal becomes a protagonist in this Court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted. The presentation of a case in this Court by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the Tribunal. (at p36)”
The law practice asserted that the High Court made clear that the challenged tribunal had a clear role to play and to avoid compromising the position in respect of future conduct of the cost application.
The manager, costs assessment is a model litigant who must comply with its obligations and in particular with the comments summarised in the article by G Appleby, “The Government as Litigant” (2014) 37(1) UNSW Law Journal, 94 at 96-97 and 101 (footnotes omitted). These comments have been extracted below:
“Justice Mahoney has argued that the model litigant obligation extends from the executive’s obligations to justice as part of the ‘rule of law’: The duty of the executive branch of government is to ascertain the law and obey it. If there is any difficulty in ascertaining what the law is, as applicable to the particular case, it is open to the executive to approach the court, or afford the citizen the opportunity of approaching the court, to clarify the matter. Where the matter is before the court it is the duty of the executive to assist the court to arrive at the proper and just result.
…
In the 1987 decision of Kenny, King CJ explained that the Court and the Attorney-General have ‘joint responsibility for fostering the expeditious conduct of and disposal of litigation’.
…
Justice Finn also went on to explain where he believes the various obligations of public bodies to act fairly might be found. He says that they reflect policies:
(a) of protecting the reasonable expectations of those dealing with public bodies;
(b) of ensuring that the powers possessed by a public body, ‘whether conferred by statute or by contract’, are exercised ‘for the public good’;
(c) and of requiring such bodies to act as ‘moral exemplars’: government and its agencies should lead by example …
…
Government conduct that amounts to a breach of the model litigant obligation has also been used by the courts as the basis for the resolution of questions relating to costs. For example, in Mahenthirarasa v State Rail Authority of NSW [No 2], the New South Wales Court of Appeal ordered the State Rail Authority pay the applicant’s costs in a workers’ compensation matter (the Authority was the applicant’s employer). The Workers Compensation Commission had initially decided in favour of the Authority. The Authority had opposed the Registrar granting leave to the Workers Compensation Commission’s Appeal Panel. The applicant appealed the Registrar’s refusal of leave to the Court of Appeal. The Authority did not participate further in the appeal, filing a ‘submitting appearance’ only. It claimed the Court should not award costs against it because it took no part in the proceedings. The Court of Appeal made the award on the basis that the Authority had failed to provide assistance to the Court, and was taking advantage of its actions in obtaining the order to refuse leave from the Commission’s initial decision.”
The content of the duty of a model litigant includes the following (G Appleby, “The Government as Litigant” at 107-108):
complying with time limits in legislation or in a court order to ensure expeditious conduct of and disposal of litigation;
not adducing late evidence, or withholding evidence until the commencement of the hearing;
providing assistance to the court and not simply submitting to the order of the court;
adducing evidence relevant to the matter even if that evidence would substantiate the case of the other party; and
providing accurate responses to factual inquiries from the other party’s solicitors.
In this case the obligation to produce the documents should have been evident from the nature of the declarations sought.
A submitting appearance submits to the orders of the court and should have included a disclosure of documents that were evidently essential to the Court’s convenient disposal of the issues in the proceedings.
Having been asked for the documents since 25 June 2025, the second defendants alleged that the cost assessor must continue, but refer to no authority and effectively adopt a process inconsistent with the submitting appearance by “charging ahead”. This can only result in wasted work and prejudice the Court’s consideration of the issues before the Court.
This is highlighted when on 18 July 2025, 21 days after service when the second defendants were expected under r 59.6 of the UCPR to indicate a position in respect of the summons and to file that response, the matter was adjourned for three weeks with a submitting appearance filed by the second defendants.
During that period, one should have been able to expect that no further steps would be taken.
In essence, the law practice submitted that a submitting appearance should not be a cover for “charging forward”.
In the letter dated 31 July 2024 from the Crown Solicitor’s office, the position of the two second defendants was outlined as follows:
“While our clients have filed submitting appearances, save as to costs, in both sets of proceedings, this does not amount to a submission, or consent, to the relief sought in your client’s summonses, but rather a submission to the orders that may ultimately be made by the Court. As no such orders have yet been made, including any order staying the subject costs assessment processes, those processes remain extant and it is appropriate that they be progressed. Further, by progressing those costs assessment processes, my clients could not be taken to be seeking to defend the relevant decisions that they have made. Rather, they are exercising those functions that they are required to exercise under relevant legislation, in the absence of stay orders made by the Court.”
The costs assessor who is currently conducting a costs assessment under the Legal Professional Uniform Law (LPUL) and the Legal Profession Uniform Law Application Act 2014 (NSW) (LPULA Act) has notified the parties that he will take no further action until this judgment is delivered.
It is my view that the manager, costs assessment, while exercising his statutory power under the LPUL, is obliged to comply with that legislation. There is no statutory provision in the LPUL to empower the manager, costs assessment to provide discovery.
In any event, if I am wrong and the Notice of Motion is considered a proceeding (which it is not), UCPR r 21.2 does not apply, because documents sought from the manager, costs assessment do not relate to any facts in issue relevant to the determination of the costs assessment.
For these reasons, the application for discovery is misconceived and should be dismissed.
The law practice seeks a stay of proceedings against the costs assessor in proceedings number 2025/243984 on the following ground:
The costs assessment under Assessment Number 2024/004224922, including both the original and amended applications, be stayed pending further order or final determination of these proceedings
Section 67 of the CPA reads as follows:
67 Stay of proceedings
Subject to rules of court, the court may at any time and from time to time, by order, stay any proceedings before it, either permanently or until a specified day.
The law practice submitted that at the costs assessor’s suggestion, the amended application for assessment of costs was then forwarded to the manager, costs assessment without the law practice’s knowledge and without being accompanied by any fee and without being referred to the Law practice as required by the mandatory process required by r 34 of the Legal Profession Uniform Law Application Regulation 2015 (NSW) (LPULAR). The stay is sought to:
preserve the neutrality and availability of the tribunal;
avoid the waste of time and effort depending on the result;
avoid the distraction of multiple proceedings proceeding simultaneously; and
there is no prejudice in the delay of the cost assessment which cannot be compensated by interest.
Finally, the balance of convenience is heavily in favour of having the Court’s directions prior to the cost assessment continuing.
Regulation 34 of the LPULAR states:
34 Procedure before application for assessment of bill referred to assessor—Uniform Law costs
(1) On receipt of an application for assessment of Uniform Law costs (other than an application by the law practice that gave the bill), the Manager, Costs Assessment is to deal with the application as follows:
(a) A copy of the application is to be given by the Manager, Costs Assessment to the law practice that gave the bill accompanied by a notice advising the law practice that any response to the application must be lodged with the Manager, Costs Assessment in writing within 21 days after the law practice receives the notice.
(b) A copy of any response duly lodged with the Manager, Costs Assessment is to be sent by the Manager, Costs Assessment to the applicant.
(c) The application is to be referred by the Manager, Costs Assessment to a costs assessor for assessment as soon as practicable after any response is duly lodged with the Manager, Costs Assessment or, if no response is duly lodged, as soon as practicable after the period referred to in paragraph (a).
(d) Any relevant response, and any response that is lodged out of time, is to be sent by the Manager, Costs Assessment to the costs assessor to whom the application for assessment is referred.
(2) On receipt of an application for assessment of a bill of costs for Uniform Law costs by the law practice giving the bill, the Manager, Costs Assessment is to deal with the application as follows:
(a) A copy of the application is to be given by the Manager, Costs Assessment to the person who was given the bill of costs and is to be accompanied by a notice advising the person that any objection to the application must be lodged with the Manager, Costs Assessment in writing within 21 days after the person receives the notice.
(b) A copy of any objection duly lodged with the Manager, Costs Assessment is to be sent by the Manager, Costs Assessment to the applicant with a notice advising the applicant that any response to the objection must be lodged with the Manager, Costs Assessment in writing within 21 days after the applicant receives the notice.
(c) A copy of any response duly lodged with the Manager, Costs Assessment is to be sent by the Manager, Costs Assessment to the person who lodged the objection.
(d) The application is to be referred by the Manager, Costs Assessment to a costs assessor for assessment:
(i) if no objection is duly lodged with the Manager, Costs Assessment—as soon as practicable after the period referred to in paragraph (a), or
(ii) if an objection is duly lodged—as soon as practicable after a response is duly lodged with the Manager, Costs Assessment or, if no response is duly lodged, as soon as practicable after the period referred to in paragraph (b).
(e) Any relevant objection or response, and any objection or response that is lodged out of time, is to be sent by the Manager, Costs Assessment to the costs assessor to whom the application for assessment is referred.
The law practice’s written submissions dated 13 August 2025 set out two particular grievances the law practice has with the manager, costs assessment being that he:
did not charge Croft Developments a fee when accepting the amended application, and
did not serve it on the law practice.
The evidence on this Motion is:
the manager, costs assessment charged Croft Developments the prescribed fee when accepting the amended application, and that fee was paid, and
the law practice (and the costs assessor) has been served, albeit by Croft Developments instead of by the manager, costs assessment.
Insofar as the law practice alleges that the application, without its knowledge, was accepted by the manager, costs assessment without any fee and without being referred to the law practice, these allegations are incorrect. Croft Developments paid the correct filing fee with the application for costs assessment and an additional fee for the higher sum claimed in the amended application (see affidavit by Amal Witnish dated 15 August 2025 at pages 30-38).
On 15 May 2025, Ms Prasad’s assistant emailed the sealed amended application for assessment of costs to Mr Doyle (see affidavit by Amal Withnish at p 37). On 5 June 2025, Mr Doyle sent a letter to the costs assessor acknowledging the sealed amended application. The law practice has not provided any evidence to the effect that it was not served the amended application by the manager.
So, as a matter of fact, these grounds for a stay have no substance.
The law practice did not identify any power for the court to grant a stay of the costs assessment. Croft Developments submits there is no power.
This Court has power to grant a stay of any proceedings before it under CPA s 67. However, the law practice has not identified any authority that might tend to suggest that a costs assessment constitutes “proceedings” within s 67, let alone “proceedings before [the Court]”.
In Nano Logistics Pty Ltd v Harper James Law Group Pty Ltd [2024] NSWSC 251 (Nano Logistics), Chen J declined to stay the issue of a certificate of determination (the last step in a costs assessment), because the issuing of that certificate was not a “proceeding” within the meaning of s 67: Nano Logistics at [30]-[32].
To the extent—as here—the law practice sought to void the costs assessment without making an appeal to the Court under s 89 of the LPULA Act, Chen J held there is no power for this Court to make any order to that effect: Nano Logistics at [35].
On at least 2 other occasions besides Nano Logistics, this Court has either summarily dismissed or dismissed similar proceedings.
In Griffith v Australian Broadcasting Corporation & Ors [2013] NSWSC 750 (Griffith), a party to an ongoing costs assessment commenced proceedings commenced by summons seeking declarations about issues to be decided (note that future tense) by the costs assessor. Beech-Jones J summarily dismissed the proceedings in 3 steps, his Honour:
at [47] accepted that the proceedings involve the invocation of the declaratory jurisdiction of the Court in circumstances where there is a full scheme of merits and judicial review available to the law practice that will enable him to obtain a determination of all the issues and fact and law he wants to raise;
at [53] held the starting position is that it is Parliament’s assessment that the appropriate forum to decide these issues is via costs; and
at [53]-[54], his Honour found costs assessment should not be interfered with by the continuation of these proceedings because all the points the law practice wishes to raise can be determined via that statutory scheme.
In Griffith, the precise legislation was the former costs assessment scheme, but Croft Developments submitted nothing in the changes to the legislation warrants a different result here.
In Johnston v Boyd [2023] NSWSC 194 (Johnston), a party to a costs assessment commenced proceedings by summons seeking declarations about issues that had been decided (note that past tense) by the costs assessor. The summons in Johnston sought a similar series of declarations as here. Fagan J dismissed the proceedings after a final hearing in 3 steps like those in Griffith. In Johnston, Fagan J
at [33] held the circumstances raised at the outset the question whether the Court’s discretion should be exercised against granting relief by way of judicial review, assuming that a denial of procedural fairness could be made out in favour of the law practice, relief in circumstances where the law practice did not apply for a review of the costs assessor’s determination by a review panel pursuant to the LPULA Act;
at [36]-[38] held the law practice’s entitlement, as of right, to have a rehearing by a review panel and thereafter to pursue one of the alternative appeals from the panel’s decision to a court are specific forms of recourse created by the same Act that provides for the original assessment and that requires it to be undertaken with procedural fairness, which is a feature noted as important to enlivening the discretion not to interfere in the statutory; and
at [39]-[40] found costs assessment should not be interfered with as the facts before him favoured exclusivity of the review panel process and there were no countervailing facts at paragraphs [39]-[40].
In Johnston, the court was dealing with the same statues as arise in the present matter.
It is difficult to see how this Court has a power to grant a stay when it is doubtful the Court has a power to grant the relief sought.
Once upon a time, it was settled law, whether to grant a stay by exercising the power conferred by CPA s 67 required a discretionary judgment. On 1 November 2023, the High Court of Australia changed that settled law.
The exercise of that s 67 power now requires an evaluative judgment.
The question of whether this Court should grant a stay is capable of only one correct answer and the choice is binary: either yes or no. Discretionary judgments are different because the law admits of more than one correct answer within a tolerable range (adopted from Cizek & Mihov [2024] FedCFamC1A 151 per Austin J at [86]).
In GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857 (GLJ), the High Court allowed an appeal from the exercise of that s 67 power, overturning the New South Wales Court of Appeal who had granted a stay. The primary judge’s decision refusing a stay sought, as here, on a Notice of Motion, was restored.
In separate judgments, all 5 judges agreed that exercise of that s 67 power requires an evaluative judgment: Kiefel CJ, Gageler, and Jagot JJ at [15]–[16], [23]–[28]; Steward J at [89], [90], [95], and [96]; Gleeson J at [161].
In GLJ, the majority decided the correct evaluative judgment was that a stay should be refused, and on this aspect they differed from Steward and Gleeson JJ who decided the correct evaluative judgment was that a stay should be granted. All 5 judges, however, used the same method when deciding the correct evaluative judgment: identify the material facts giving rise to the binary question.
The material facts giving rise to the binary question whether to grant a stay are
whether the law practice's two grievances have substance, and
whether the Court has a power to grant the relief sought, to which the stay is a means to an end.
For reasons already stated, the law practice's 2 grievances have no substance and the Court has no power to grant the relief sought on the evidence before it.
These are not Motions for summarily dismissal. This is not a final hearing. It might turn out, at the final hearing, the Court has power to grant the relief sought on the evidence before it at that time. But we are dealing with an application for a stay now, on evidence presented now.
So, the binary question becomes: should a stay be granted of the costs assessment when the law practice's grievances have no substance and when the Court has no power to grant the final relief sought on the evidence before it?
The answer to that binary question is that a stay of the costs assessment should be refused, because there is no reason why the costs assessment should not proceed to conclusion in accordance with Griffith at [44]-[46].
In reply, the law practice’s legal representative referred to the above decisions and made submissions as to why they should not be followed. None of them were persuasive.
Further the law practice referred to Gilles v Palmieri [2018] NSWSC 350 (Gilles) where I made a decision in the nature of certiorari removing to the Court the decision of the costs assessor in matter number 2016/242676 made on 26 June 2017 and quashing that decision.
In Gilles, the matter that was remitted to the manager of costs assessment to be dealt with according to law at [71]:
“[71] It is my view, that the costs assessor reviewed the decision of Robison DCJ, considered the conclusion expressed and came to the decision that he was precluded from proceeding with the costs assessment even though he was aware there was an appeal extant from the decision of Robison DCJ. As it turned out the decision of Robison DCJ was overturned on appeal and the costs assessor’s decision not to proceed with the costs assessment was incorrect. However, it cannot be said that the costs assessor did not act in good faith. As there was no lack of good faith s 208SA of the Legal Profession Act precludes the making of a costs order against the costs assessor.”
Gilles is based on different facts where the costs assessor decided not to proceed with the costs assessment. That determination was found to be incorrect. In these current proceedings before me, the costs assessor has decided to not take any further steps until my decision is handed down.
The facts in Gilles differ. In the current application for a stay of proceedings, there is no direction that if complied with would lead to an assessment of costs continuing on the wrong basis. By not proceeding with the cost assessment, it would put this law practice to a great deal of unnecessary work and expense.
The law practice also relied on Griffith at [31]-[32] which cited the decision of Davies AJ in Commonwealth Bank of Australia v Hattersley [2001] NSWSC 60; 51 NSWLR 333 at [31]:
“[31] Mr Smark SC submitted that there was nothing unusual in his client seeking declaratory relief in a matter such as this. As an example of this jurisdiction being invoked in this context he cited the decision of Davies AJ in Commonwealth Bank of Australia v Hattersley. In Hattersley, Davies AJ held that solicitors employed by corporations are entitled to have their costs assessed on the same basis as that of independent solicitors exercising comparable skills in the performance of comparable work.
[32] In the course of that judgment his Honour rejected a submission that to grant declaratory relief would involve an unwarranted interference with the statutory scheme for costs assessment. His Honour found (at [30] to [31]):
"I agree with Mr Quickenden that, in general, it is thoroughly undesirable to engage in judicial review of proceedings which are at an interlocutory stage. In many fields, courts have made it plain how undesirable this is: see Sankey v Whitlam (1978) 142 CLR 1 at 25-26 and Director-General of Social Services v Chaney (1980) 47 FLR 80. In Overton Investments Pty Ltd v Carnegie [2000] NSWSC 581, I discussed some of the problems involved in reviewing proceedings which have not been heard and determined. The powers conferred on the Court by its inherent jurisdiction and s23 and s75 of the Supreme Court Act should not be exercised lightly so as to overcome the restrictions which exist on the ambit of the prerogative writs.
However, I am satisfied that, in the present case, the request or direction given by the Assessor would, if complied with, have led to an assessment of the costs on a wrong basis and that fulfilment of the request or direction would have involved the CBA in a very great deal of unnecessary work and expense. In the circumstances, I think it is appropriate to make an order: see Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-582 and Attorney General for New South Wales v Smits (1998) 45 NSWLR 521."
The decision of Davies AJ was based on very different facts and not applicable here.
As in Griffith, Johnson and Nano Logistics, it is my view that there are no proceedings before the court. These authorities made it clear that a determination of a costs assessment is not a proceeding. As stated in Griffith, the starting point is that it is Parliament’s assessment that the appropriate forum to decide these issues is via that statutory mechanisms that have been created. It is my view that the costs assessment should be finalised without any interference by this Court. For these reasons, I decline to grant a stay of proceedings.
Paragraph [4] of the law practice’s Motion filed 4 August 2025 is dismissed with costs.
I dismiss pars [2] and [3] of the law practice’s Motion filed 4 August 2025 in 2025/243922**,** seeking discovery from the manager, cost assessment.
I dismiss par [4] of the law practice’s Motion filed 4 August 2025 in 2025/243984, seeking a stay of costs assessment proceedings between the law practice and Croft Developments.
The law practice submitted that costs of the Notice of Motion be costs in the cause. Croft Developments seeks that their costs be paid on an indemnity basis.
Costs are discretionary. Normally, costs follow the event see UCPR r 42.1. There is no reason to depart from the normal rule. The plaintiff is to pay the defendant’s costs. The issue is whether the defendant’s costs should be paid by the plaintiff on an indemnity basis.
98 Courts powers as to costs
(1) Subject to rules of court and to this or any other Act:
(a) costs are in the discretion of the court, and
(b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and
(c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis.
…
[My emphasis added.]
42.1 General rule that costs follow the event
Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs.
…
Those costs should be as agreed or assessed on the indemnity basis for several reasons:
Croft Developments alerted the law practice to the decision of Griffith and called for the law practice to identify the real issues by way of how Griffith could be overcome, to which the law practice has provided no reply, not even when making submissions on this Motion (see affidavit of Minh Nguyen made 16 August 2025 at pars [3] and [4] on page 2, and pars [13]–[17] on page 9).
The law practice's submissions are devoid of authority. It has fallen to the defendant to cite Griffith, Johnston, Nano Logistics, and GLJ.
The law practice has bombarded Croft Developments with multiple, defective summonses in beach of UCPR r 50.4.
The law practice has peppered Croft Developments with duplicate affidavits for no good reason, without even the courtesy of a covering letter informing Croft Developments’ solicitor, Ms Nguyen, they are duplicates, forcing her to review the documents page-by-page (see affidavit of Minh Nguyen made 16 August 2025 at pars [5]–[7], and [14]–[17]).
The law practice has served evidence after close of business on Friday, 15 August 2025, in breach of the Court’s timetable, without any warning and without any apparent need, requiring Ms Nguyen and Croft Developments’ counsel to urgently work after business hours on Friday and Saturday (see affidavit of Minh Nguyen made 16 August 2025 at par [1]).
Costs are discretionary. Normally, costs follow the event.
The law practice is to pay Croft Developments’ costs. As to whether the law practice should pay Croft Developments’ costs on an indemnity basis, it is a borderline decision. Both of the law practice’s applications are misconceived. But overall I am not satisfied on the balance of probabilities that the misconceived applications amount to the most unreasonable action by the law practice. On this basis, I decline to award costs on an indemnity basis.
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Minor changes
DLAW Pty Ltd
CROFT DEVELOPMENTS Pty Ltd
(1980) 144 CLR 13
(2023) 97 ALJR 857
(1978) 142 CLR 1
(1980) 47 FLR 80
(1992) 175 CLR 564
(1998) 45 NSWLR 521